Forbes: Nullification Is “Loopy”

In an unintentionally funny aside in an article at Forbes.com, a guy named Richard Salsman (who runs an investment research firm) condemns nullification in the most uncomprehending words — and as someone who’s written a book on the subject, I can tell you this is quite a feat.

(If you are unfamiliar with nullification, here’s what it’s all about.)

He tells us: “Such hostility to the judiciary today isn’t found only in Mr. Obama and his ilk or in the Democratic Party, but also in the Jeffersonian libertarians, as is obvious in the works of Thomas Woods and Andrew Napolitano, which defend the Jeffersonian notion of ‘nullification’ (a loopy, anarchic idea that says juries, legislators, and executive branch officials can decide on their own what’s constitutional, and thus can ignore, defy or nullify’ rulings by courts and judges).”

So he speaks of this “loopy” idea without once using the word “states”! This is his level of knowledge. Juries is one thing — there he’s just confusing state nullification with jury nullification, which of course (as I note in my 33 Questions) the Founding Fathers also supported. But legislators and executive branch officials? Does he mean federal or state? He never says. If federal, then he is confusing nullification with concurrent review, another Jeffersonian position.  (Concurrent review holds that all three branches, not just the judicial, have a responsibility to determine the constitutionality of proposed federal activities.) And of course if he means federal, then one might cite both Andrew Jackson and Abraham Lincoln as fairly well known fellows who had a different view from that of Richard Salsman.

If he means state officials he’s closer to the truth, but he explains the idea like a propagandist. I’d say Salsman is a Hobbesian and that that’s where the mental block is coming from, but I see no evidence he has thought about serious things long enough to have a political philosophy, apart from never wanting to say anything that might fall outside the sacred Biden/Romney spectrum.

(Incidentally, a word of advice for Richard: calling an idea “loopy” is a case of exceedingly poor writing. Mencken wouldn’t have used sledgehammer prose like that. It’s like calling your opponent’s article a “screed.” Fingernails on a chalkboard.)

Richard, you be sure and let me know when you can answer my longstanding replies to objections. It is cruel of you to tantalize us with the one statement about nullification. Your insights into U.S. history are anxiously awaited.

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  • http://www.facebook.com/people/Glenn-Horowitz/638557380 Glenn Horowitz

    That thar’s a right knee-slapper! I love how these nitwits blather about personal liberty, small government, and Constitutional sovereignty, but when someone’s willing to actually follow through on the rhetoric, they’re ‘loopy, wacky or screwy.’ Well done.

  • Arash

    Tom, did I tell you how I got Supreme Court Justice Scalia’s thoughts on nullification?  He said that the civil war decided it! Haha.

  • http://twitter.com/Conza Conza

    Indeed. Fyi here’s “Judge Napolitano on Nullification” ( http://youtu.be/37tEeO-qTYo ). Bonus footage; Tom Woods getting ‘kissed’ for being “The Smartest Man in the Room” haha.

  • Anonymous

    Tom, just accept it. All of your fine work on nullification is stupid and useless because it upsets the boot lickers. Think of their feelings and then issue a retraction of everything you’ve ever written.

  • oldsmobile98

    Clarification is needed as to why “screed” is a example of poor diction. : )

    Also, couldn’t Obama have cited concurrent review in his recent attempt to chide the Supreme Court?

  • Anonymous

     It’s not poor diction. It’s a sledgehammer. Unwieldy, ugly. Damned fun to swing, though.

  • Thomasc

    Have you thought of contacting Forbes with a rebuttal article? They may be open to the idea.

  • Jordan

    “So he speaks of this “loopy” idea without once using the word “states”!”

    [Zombie Voice] SLAVERY! [/Zombie Voice]

  • NJDave

    Tom, why don’t you write in with a response? The people who read Forbes aren’t going to get an alternative view because…well…they read Forbes!

  • http://tomwoods.com Tom Woods

    It would seem petty to write a whole response to one sentence, which is the only sentence that interests me. That’s why a blog response is perfect, I think.

  • http://twitter.com/FL10thAmendment FL 10th Amendment

    Accepting the truth about nullification upsets everything these people hold true about the establishment power structure. Of course they have to condemn it. The constitution agreed upon by the Ratifiers including the rightful remedy of Jefferson threatens not only their place in that establishment, but expands liberty to a point where they dare not go. The vassal status of the states works for them and quite nicely and comfortably thank you. Why upset the nice racket they have going with something so archaic as freedom?

  • Robert Roddis

    Forbes has clearly been drinking the establishment statist Kool-Aid.  Today they published a completely unreconstructed Keynesian article by an ECONOMICS PROFESSOR explaining why the RYAN BUDGET proposal is draconian and will harm the economy.  This state-of-mind was made possible by the writer plugging his ears for decades so that he has never heard a word about Austrian Economics.

    http://www.forbes.com/sites/johntharvey/2012/04/09/the-ryan-budget-a-mistake/

    I have a comment below the article.

  • Anonymous

    As always, Tom, nice work.

  • G Gevers

    Salsman has never understood Austrian economics and probably never will. Like many objectivist, not all of them. He attacks the Austrians on their epistemology. Not realizing that an Aristotilian epistemology, which objectivism really is, is fully compatible with what the Austrians do.

    See his wiki here:

    http://en.wikipedia.org/wiki/Richard_Salsman

  • Serio420

    That seems a little too biased. I mean, even from a liberal or conservative standpoint, you would think that they might also find use in state nullification. For example, a highly Democratic state might want to utilize nulllification if there was a federal statute that was conservative, yet outside of the constitution. Talk about closed minded.

  • DMY

    One question on the state nullification argument:  does a state’s pre-existing power and authority over its own affairs necessarily preclude it’s ability to contract some of that away?  I don’t question at all that the states are originally invested in such power and authority.  I also find it self-evident enough that the federal government has only such powers (and limited ones at that) as are granted to it in the written constitution.  What is less clear to me is that states would be incapable of granting authority over constitutional interpretation to the several branches of the federal government.  Certainly, the very act of signing the constitution was a form of ceding authority (however limited or circumscribed) to the federal union–and so long as that authority is exercised by the federal government in conformity with the prescriptions of the constitution, the state presumably claims no right to override or ignore that granted authority (other than in accordance with the terms of the constitutions–e.g., via amendment process).  

    But perhaps the argument is not that the states are incapable of ceding some authority to the federal union, but rather that the states simply have not fully ceded to the federal branches the specific right to interpret and enforce the terms of the constitution.   I can accept that as a plausible proposition, although I find the evidence supporting it more circumstantial than direct and convincing.   As normative matter, in attempting to form and keep intact a union with other state sovereigns, it would not on its face be completely unreasonable for a state to grant the right of constitutional interpretation exclusively to the officials democratically elected to prosecute the union’s governance.   The alternative could be unsettling and potentialy chaotic–essentially like parties to a contract agreeing that each could be their own arbiters in mediating disputes under the contract (and there’s no guarantee whatsoever that a state’s own interpretation of the constitution would be any less political, self-serving and unjudicious than that which we observe not infrequently from the Supreme Court and Executive Branch).   In other words, isn’t there some logic in the several states agreeing to a centralized arbiter, constituted of officials appointed via democratic process that incorporates the voice of all states, to manage dispute resolution?

    Whether history supports the notion that the states in fact have so ceded that intepretive power to the federal branches is another question altogether, I recognize.  But in my mind that’s really the heart of the matter, and I’m not sure it gets enough examination Woods’ state nullification argument.  
          

  • DMY

    I guess said another way–is it so clear that the grant of jurisdiction to the courts in Article III (including the jurisdiction to hear “all cases arising under the constitution… Controversies to which the United States shall be a Party; Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States;” was intended as a non-exclusive grant?   And I suppose that case could be made persuasively, just would like to hear it teased out a bit.